Later in the program, I interview Rep. Jim Langevin (D-RI), who’s been a force for cybersecurity both on the Homeland Security Committee and on the Armed Services subcommittee that oversees Cyber Command and DARPA – a subcommittee that insiders expect him to be chairing in the next Congress.

We also touch on what the detention in Canada of Huawei’s CFO means for US-China technology relations as well as on a new DOD report on the risks of EMP. Nick explains why he doesn’t worry about EMP but nonetheless loves the EMP alarmists.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Dec 03, 2018

This episode features an interview with Michael Tiffany, the co-founder and president of White Ops and a deep student of how to curtail adtech fraud. Michael explains the adtech business, how fraudsters take advantage of its structure, and what a coalition of law enforcement and tech companies did to wreck one of the most successful fraud networks, known as 3ve. You can read more about the take down in the joint White Ops and Google report, “The Hunt for 3ve.”

Nobody trolls like the Russians troll. David Kris covers a Russian trollsuit claiming that Facebook has unfairly censored Russian speech. Showing that they know their opponents’ weakness, the suit includes broad hints that censoring Russians is … racist.Maury Shenk covers the bookend – Russian government threats to sue Google for not complying with Russian censorship demands. And I suggest that Putin’s Data Protection law will be just that – a law to protect Putin’s data. Speaking of privacy law always protecting the powerful, Michael Tiffany offers several reasons why GDPR has been good for Google and Facebook ad market share and bad for European competitors. It’s the tragedy of EU mercantilism: always aiming at the United States and usually hitting itself in the foot.

Another day, another Iranian hacking/ransomware indictment. What’s different about this one, Megan tells us, is that it includes a Treasury order freezing the bitcoin the Iranians collected. That’s a potentially new and powerful law enforcement tool. With only a little cajoling, David Kris acknowledges that this is one Trump administration initiative that is both novel and a good idea.

Wrapping up, David Kris ponders the surprisingly straightforward Fourth Amendment issues raised when the police have to stop an autonomous-mode Tesla going 70 on the 101 with a passed out “driver.” And Megan and I ponder the difficulty posed for social media by the “yellow-vest” riots in Paris. Which model applies: Arab Spring or Russian interference? You know what the Macron administration will say. Buckle up, Big Tech. To paraphrase Peter Parker’s Uncle Ben, with great power comes utter confusion.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Nov 28, 2018

This episode’s should be titled "Baker’s Law of Evil Technology," as it explains Twitter’s dysfunctional woke-ness, Yahoo’s crappy security, and Uber’s deadly autonomous vehicles. Companies with lots of revenue can afford to offer benefits that they don’t much care about, including protection of minority voices, network security, and, um, not killing people. But as Uber’s travails show, all that gets tossed out the window when corporate survival is at stake. And here’s Baker’s Law in action: Airline algorithms that deliberately break up families sitting on the plane so they can charge to put the kids back in the same row.

I do a mini-interview of Adam Candeub, who has disclosed that the supposedly populist, supposedly Silicon-Valley-skeptical Trump Administration has proposed a massive and antidemocratic subsidy for conservative-censoring social platforms. Worse, it's written into the virtually unamendable NAFTA 2.0. I rant (briefly) about it and pray that Congress kills the provision in the lame duck.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Nov 19, 2018

Mieke Eoyang joins us for aninterview about Third Way’s “To Catch a Hacker” report. We agree on the importance of what I call “attribution and retribution” as a way to improve cybersecurity. But we disagree on some of the details. Mieke reveals that this report is the first in a series that will hopefully address my concerns about a lack of detail and innovation in the report’s policy prescriptions.

Russia’s lawyers are almost as good as its hackers, to judge by a “letter” from the Russian government in the DNC’s hacking case against it. Matthew Heiman and I conclude that the DNC is going to face an uphill fight trying to overcome Russia’s sovereign immunity arguments.

It’s not cybersecurity, but it is cyberhygiene: Never do a global “find and replace” on a sensitive court filing without making sure the “replace” part actually worked. That seems to be the failure that disclosed to the world that the US has filed criminal charges against Julian Assange under seal. Maury Shenk comments.

“As an additional service to Alexa users, we promise to protect the privacy of anyone who murders you.” Okay, maybe that’s an unfair summary of Amazon’s position on whether to release Echo recordings in a double murder case. It’s not surprising that Amazon wants a court order before handing over the recordings, or that it got one, or that it seems to have complied promptly. The real news, I argue, would be if the company had handled the matter any other way.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Nov 13, 2018

Today’s interview is a deep (and long – about an hour) dive into new investment review regulations for the Committee on Foreign Investment in the United States (CFIUS). It’s excerpted from an ABA panel discussion on the topic, featuring: Tom Feddo, who currently oversees CFIUS; Aimen Mir, who used to oversee CFIUS; Sanchi Jayaram, who is in charge of the Justice Department’s CFIUS and Team Telecom work; David Fagan, a noted CFIUS practitioner; and me as moderator. It turns out the new CFIUS law may be the most innovative – and sweeping – piece of legislation on national security in years.

In the news, it’s time for a Cyberlaw Podcast victory lap, as our bold election-eve prediction that foreign governments would not successfully hack the election seems to hold up well, despite laughable Internet Research Agency claims in a new meta-trolling propaganda campaign.

I note that challenges to FISA are increasing as it starts to play a role in more criminal cases. I ask David Kris whether Bob Mueller took unwise risks with intelligence equities when he charged a Russian company with criminal election trolling, since that company is now seeking discovery of intelligence intercepts.

Dr. Megan Reiss notes that China is making what might be called great strides in “gait recognition” software to supplement face recognition, taking what looks like a global lead in the technology. This reminds me that fifteen years ago, when DARPA was researching gait recognition for terrorist identification, the left/lib NGOs got Congress to kill funding by lampooning what they called “a Monty Python-esque ‘Ministry of Silly Walks.’” Not so funny now, is it guys? Especially in light of evidence that China is exporting its cyber surveillance tech to Africa.

How does China do it? According to the Australian Strategic Policy Institute, with plenty of help from the universities of the English-speaking world. Apparently the People’s Liberation Army has been sending its scientists to the West under light cover to study cutting edge defense tech.

Nate Jones and I examine the latest chapters in the now-encyclopedic tale of Silicon Valley v. Conservatives. We take a look at a Trump immigration campaign ad that Facebook and broadcast media (Fox included) refused to run. Gab is back, but just by the skin of its teeth. Meanwhile, the pitchforks and torches are being mustered for LinkedIn, which apparently hasn’t been sufficiently cowed by lefty censors. And Facebook’s effort to suppress Alex Jones’s InfoWars site is running into trouble.

Megan and I talk about the prospect that Iran is getting ready to launch cyberattacks on the US and Israel.

Nate covers the collapse of IronChat security as Dutch police managed to decrypt 258,000 messages in the app. Maybe spurred by my taunting, Edward Snowden denies that he ever endorsed the product, notwithstanding the claim on IronChat’s website. (My tweet on same: “Hey, @Snowden, IronChat sold secure phones at exorbitant prices because of your endorsement.”)

Pakistan says “almost all” its banks have been hacked. Wouldn’t it be ironic if North Korea was buying nuclear and missile technology from Pakistan with money stolen from Pakistani banks?

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Nov 05, 2018

This episode puts our experts on the spot with an election-eve question: Will foreign governments attack US electoral rolls or vote-counting machinery in 2018? Remarkably, no one on our panel (Matthew Heiman, Nick Weaver, David Kris, and I) thinks they will. So if you want cybersecurity news, you can stop listening to election coverage and tune in to Episode 238 of The Cyberlaw Podcast.

Our interview features Steve Rice (Deputy CIO for DHS) and Max Everett (CIO for the Department of Energy) and was originally taped at a session of the Homeland Security Week conference.

Matthew Heiman explains why SCOTUS is skeptical of Google’s cy pres settlement that treated 129 million class members like bystanders at someone else’s party – and why that skepticism may not appear in US Reports any time soon.

Matthew and I talk about the string of right-wing killers in the past few weeks and the tech implications, including the defenestration of Gab and a lot of throat-clearing about amending Section 230 of the Communications Decency Act.

After all the Internet-enabled vibrator stories we’ve covered on the podcast, I think we’re obliged by gender equity to cover this effort to use artificial intelligence to improve male sex toys. For those who may face confirmation before the Senate Judiciary Committee any time in the next decade, Nick explains that Markov chain techniques have nothing to do with the Devil’s Triangle.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Tim Cook, meanwhile, goes to Europe to troll Android – and me – with a speech that pushes all my buttons: Europhilia, Apple sanctimony in pursuit of profit, and blind enthusiasm for privacy regulation. But at the end of the day, it's just another Apple-bites-Android story.

Last in the troll parade comes what can only be described as the understated trolling deployed by the British government when it was asked by the Belgians to investigate whether a Belgian ISP might have been hacked by GCHQ.

This week’s interview is with Dr. Dipayan Ghosh, Pozen Fellow at Harvard’s Shorenstein Center and co-author of a new report, “Digital Deceit II: A Policy Agenda to Fight Disinformation on the Internet.” It's an interesting mix of good insights and warmed-over Obama-era nostalgia (Carly Rae Jepsen makes a brief appearance). Dipayan and I tangle on privacy but struggle toward common ground on how to limit the power of the Big Platforms. He’s open-minded and flexible about the details of his proposal, so for fans of civil policy debate who are worried about where the platforms’ dominance and ad revenue are taking us, this episode is a keeper.

More news: Why would a Russian technical institute design malware used in an effort to sabotage a major petrochemical plant in Saudi Arabia? Nate Jones lays out the story. Originally suspected of being an Iranian operation, the attack may have originated in Iran, but FireEye persuasively links the underlying (and flawed) malware to Moscow. One possibility is that it’s a Russian false flag job, minus the embarrassing GRU operatives and their Uber receipts. My guess, though, is that the Russian institute is just amortizing malware development costs by selling off exploits developed for the GRU. If so, this may turn out to be another slow motion disaster for the thugs in the Aquarium.

In other news, Yahoo settled a class action over the enormous breach affecting 200 million people and three billion accounts. The price of that settlement? After the lawyers have been paid, the settlement works out to about 25 cents per victim. Seems pretty cheap to me.

In the UK, Facebook is fined the maximum under pre-GDPR law, for what the privacy agency calls a failure to protect personal data from Cambridge Analytica – or, more likely, for the unspeakable crime of not having prevented the election of Donald Trump. And now that GDPR is in effect, the bien pensants of Europe have served notice; failure to prevent the President’s re-election will cost Silicon Valley billions.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Oct 22, 2018

In this week's interview we ask whether the midterm elections are likely to suffer as much foreign hacking and interference as we saw in 2016. The answer, from Christopher Krebs, Under Secretary for National Protection and Programs Directorate (soon to be the Cybersecurity and Infrastructure Security Agency), is surprisingly comforting, though hardly guaranteed. Briefly, it’s beginning to look as though the Russians (and maybe the Iranians) are holding their fire for the main event in 2020.

Terry Albury certainly got it good and hard from a federal judge. He was sentenced to four years in prison for leaking classified documents to The Intercept. Jamil Jaffer explains why Albury’s claim of being a whistleblower didn’t win him much relief. I suggest that maybe the only people willing to read Intercept articles to the end are federal agents trying to find clues to the leakers’ identities; whatever they’re doing, it’s working.

Jamil explains the latest SEC report flagging the cost of email fraud; nine firms lost $100 million to cyberfraud. And to add insult to injury, the SEC hints broadly that future victims may be tagged for violating SEC accounting standards, which should be sufficient to prevent such fraud.

I point to the ABA’s recent ethics opinion mandating breach disclosure to clients – and quite a bit more. Maury instructs me on the question of whether putting names on doorbells violates GDPR. Vienna says yes; Germany, no. Maury is sure the Germans have this right.

Finally, I update listeners on the Equifax data breach engineer who figured out that his company must have been breached and traded on his suspicion. In an act of relative mercy for the clueless engineer, he was fined and sentenced to eight months of home confinement.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Oct 15, 2018

Today we interview Doug, the chief legal officer of GCHQ, the British equivalent of NSA. It’s the first time we’ve interviewed someone whose full identify is classified. Out of millions of possible pseudonyms, he’s sticking with “Doug.” Listen in as he explains why. More seriously, Doug covers the now-considerable oversight regime that governs GCHQ’s intercepts and other intelligence collection, Britain’s view of how the law of war applies in cyberspace, the prospects for UN talks on that topic, the value of attribution, and whether a national security agency should be responsible for civilian cybersecurity (the UK says yes, the US says no).

In the news, Nick Weaver and Matthew Heiman comment on the undying dumpster fire that is Bloomberg’s Chinese supply-chain-attack story. We may not know for sure whether the story is bogus, at least not for a while. But it’s not too late, I argue, to fund a journalist version of the Ig-Nobel Prize. Call it the Bullitzer, for the story with the most potent mix of consequences and BS. Right now, Bloomberg is definitely in the running.

Matthew tells us that Treasury has announced its CFIUS pilot program, which will require the filing of notices for Chinese acquisitions in 27 critical industries. I argue that this is one more sign that a predisposed bureaucracy has made President Trump a transformational president in terms of relations with China.

Speaking of bureaucratic predispositions, DOJ is carrying out its predisposition to haul Chinese spies into court. What’s remarkable is that it was able to do that from across the Atlantic. While not a cyberespionage case, the recent arrest and extradition of an accused Chinese economic spy is easy to read as DOJ's answer to those who say that indictments of government spies are ineffectual and a sign of weakness.

Everybody’s going to have to choose sides as Trump and Xi continue on their collision course. Except Google. At least according to Google, which bailed out of a Pentagon program because it didn’t meet Google’s values --oh, and because Google had no chance of winning the contract. Talk about virtue signaling on the cheap!

The EU’s virtue signaling isn’t nearly as cheap, at least for Google, which is now appealing a massive EU competition fine. I can’t help wondering who the hell uses Google Shopping to buy stuff; the EU fine feels like it must be $1 billion for every Google Shopping search ever conducted.

Nick reports on two troubling government reports. He believes one — worrying about the cybersecurity of DOD weapons systems . He’s less impressed by White House concerns about the health of the defense industrial base, having recently done some “Buy America” electronics procurement himself.

Finally, in the latest dog-bites-man story, Vietnam will force local data storage despite Silicon Valley’s protests. Nick, Matthew, and I explore the continuing delusion of US foreign policymakers that the Internet must be borderless and open and free.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Oct 10, 2018

Bloomberg Businessweek’s claim that the Chinese buggered Supermicro motherboards leads off our News Roundup. The story is controversial not because it couldn’t happen and not because the Chinese wouldn’t do it but because the story has been denied by practically everyone close to the controversy, including DHS. Bloomberg Businessweek stands by the story. Maybe it’s time for the law, in the form of a libel action, to ride to the rescue.

Congress, astonishingly, has been doing things other than watch the Kavanaugh hearings. It produced a conferenced version of the FAA authorization including authority for DHS and DOJ to intercept drone communications and seize drones without notice or a warrant. This effort to get in front of dangerous technology yields the usual whines from the usual Luddite “technology advocates.” Meantime, Congress has also adopted a bill to change the name of DHS’s cyber and infrastructure security agency to, well, the Cybersecurity and Infrastructure Security Agency.

ZTE’s troubles continue, as a federal judge slammed the company for violating the terms of its probation. The judge extended ZTE’s probationary term and the term of its monitor – meaning the company now has two US monitors watching as it tries to rebuild its business.

The Trump Administration is following in the Obama Administration’s footsteps, Gus Hurwitz reports, trying to build consensus around norms for cyber conflict. I remain dubious, but at least this effort is limited to countries not actively engaged in cyber hostilities with the United States.

California has its own air pollution standards; why not its own net neutrality law? Probably because the FCC under Ajit Pai is not the EPA. Gus and I discuss whether any part of California’s law can withstand preemption.

The hits just keep on coming for the GRU, a formerly vaunted Russian intelligence service, which now can’t even keep secret the names of its most secret agents. Bellingcat, a private website, totally pantses the agency, outing not just its nerve agent operatives but 300 others for good measure. Piling on, the Justice Department indicts another batch of GRU operatives for hacking sports anti-doping authorities. Even Germany musters the courage to join the UK in fingering Russia for its cyberattacks while the mighty Dutch counter-hacking team joins in the sack dance.

Is the Turing test easier if you only have to convince Californians that you’re human? That may be the theory behind California’s SB 1001, making it unlawful for a bot to deceive a Californian about its botitude “in order to incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election.”

More bad news for Justice in Silicon Valley, according to leaks from a court case in which the Department is rumored to have sought a court order forcing Facebook to cooperate in a wiretap of MS-13 members.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Oct 01, 2018

In this news-only episode, Nick Weaver and I muse over the outing of a GRU colonel for the nerve agent killings in the United Kingdom. I ask the question that is surely being debated inside MI6 today: Now that he’s been identified, should British intelligence make it their business to execute Col. Chepiga?

On a lighter note, Uber is paying $148 million to state AGs for a data breach that apparently had no adverse consequences and might not even have been a breach. That's a lot to pay just to show that the company is now under new and more responsible management.

About a year too late, a consensus of sorts is emerging among Republicans that Silicon Valley needs broad privacy regulation. The Trump Administration is asking for comment on data privacy principles. And the tech giants are pushing lawmakers for federal privacy rules. But the catalyst is an increasing need for federal preemption in the face of California’s new law, and the Dems who are expected to take the House will be hard to sell on preemption. So despite the emerging consensus, a logjam that lasts years could still be in our future.

The sentencing of an NSA employee for taking sensitive hacking tools home – and getting them compromised by Kaspersky – leaves Nick with plenty of additional questions about the source of the tools disclosed by Russian proxies in recent years.

Meanwhile, undeterred by NSA's inability to secure its own systems, West Virginia had embraced a mobile voting app for the 2018 election. Remarkably, despite its firm deployment of blockchain buzzwords, none of us thinks West Virginia has solved the security problem.

Facebook suffered a breach affecting 50 million user accounts and probably 40 million “log on with Facebook” accounts. Will we hear about more? Who knows? We’re getting these facts piecemeal thanks to the EU’s dumb 72-hour deadline for reporting breaches under GDPR.

President Trump says China is interfering in the 2018 elections. But unlike the Russian version, all of China’s fake news is on actual newsprint.

Finally, a quick report roundup:

The EU is forcing Silicon Valley to restrict disinformation without actually defining, you know, disinformation. Probably because the EU doesn't want to admist that it thinks everything Trump tweets should be banned as disinformation.

DOJ’s otherwise pretty good best practices report sadly doubles down on hating hackback. Now with added rationales!

China is back to stealing our commercial secrets, but more quietly, think tanks report.

Sep 24, 2018

Our guest is Peter W. Singer, co-author with Emerson T. Brooking of LikeWar: The Weaponization of Social Media. Peter’s book is a fine history of the way the Internet went wrong in the Age of Social Media. He thinks we’re losing the Like Wars, and I tend to agree. It’s a deep conversation that turns contentious when we come to his prescriptions, which I see as reinstating the lefty elite that ran journalism for decades, this time with even less self-doubt – and bolstered by AI that can reproduce elite prejudices at scale and without transparency.

The downside of sanctions: China has joined with Russia in protesting sanctions on Russian weapons sellers that spilled over to the Chinese military. Maury Shenk and I worry about the risk that overuse of sanctions will create a powerful alliance of countries determined to neutralize the sanctions weapon.

Is it reckless to speculate that the gas fires in Massachusetts could be a cyberattack? I think it’s a fair question, to which we may not have the answer. Nick Weaver (mostly) persuades me I’m wrong.

Amazon finds itself in the sights of the European Commission over its dual role in hosting third party sellers. Maury explains why.

Putin’s enemies list, or a part of it, is disclosed when Google warns Senate staffers that their Gmail has been attacked. Maury and I congratulate Steptoe alum Robert Zarate for making the cut.

And Megan sees the hand of Robert Zarate – now officially the Zelig of cyber conflict – in Marco Rubio’s letter to Apple asking why it was so slow to stop an app from sending American user data to China.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Sep 17, 2018

Our interview this week (in our new studio!) is with Hon. Michael Chertoff, my former boss at Homeland Security and newly minted author of Exploding Data: Reclaiming Our Cyber Security in the Digital Age. The conversation – and the book – is wide ranging and shows how much his views on privacy, data, and government have evolved in the decade since he left government. He’s a little friendlier to European notions of data protection, a little more cautious about government authority to access data, and even a bit more open to the idea of letting the victims of cyberattacks leave their networks to find their attackers (under government supervision, that is). It’s a thoughtful, practical meditation on where the digital revolution is taking us and how we should try to steer it.

The News Roundup features Paul Rosenzweig, Matthew Heiman, and Gus Hurwitz – whom we congratulate for his move to tenured status at Nebraska. We all marvel at Europe’s misplaced enthusiasm for regulating the Internet. This fall the Europeans returned from their August vacation to embrace a boatload of gobsmackingly unrealistic tech mandates – so unrealistic that you might almost think they’re designed to allow the endless imposition of crippling fines on Silicon Valley.

In the last week or so, European institutions have pretty much shot the regulatory moon: Matthew sets out the European Parliament’s expensive and wrongheaded copyright rules. Paul covers the European Commission’s proposal that social media take down all terror-inciting speech within one hour, on pain of massive fines. Gus discusses the European Court of Human Rights’ ruling that GCHQ’s bulk data collection practices fail to meet human rights standards, though they can be fixed without dumping bulk collection. And I marvel that France is urging the European Court of Justice, which needs little encouragement to indulge its anti-Americanism, to impose Europe’s “right to be forgotten” censorship regime on Americans and on other users around the world. That’s a position so extreme that it was even opposed by the European Commission. Gus explains.

In other news, Paul outlines the National Academy of Sciences’ report, offering a sensible set of security measures for American voting systems. We all unpack the new California IoT security bill, which is now on the governor’s desk. I predict that, flawed though it is, ten more state legislatures could adopt the bill in the next year.

This Week in Social Media Bias: Paul tells us that Twitter has found a deep well of hate speech in … the United States Code. I tell the ambiguous story of offering up my Facebook account to verify claims of social media censorship. And Gus reports that the Left has discovered a problem with fact checking for social media posts; to their surprise, it doesn’t always work in their favor.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Sep 16, 2018

For those who've been waiting (and maybe hoping) that I'd be suspended from Facebook after I linked to infowars.com, we have an answer.

I began the experiment when a guy named Brandon Straka, leader of the conservative #WalkAway initiative, announced that he had been given a 30-day account suspension for linking from Facebook to his upcoming interview on infowars. I couldn't believe Facebook was banning people for mentioning Alex Jones or his site, so I decided to put my own account at risk by doing the same. (If I were Cory Booker, I'd call it my "I am Spartacus" moment. But I'm not.)

A few hours later, with Straka getting a lot of clicks for his complaint, Facebook rescinded the ban, calling it a mistake. Straka claims Facebook didn't tell him the ban was lifted but did tell a hostile journalist, who then wrote a snarky article about the incident.

So that's where things stand. Facebook's messages to Straka clearly show that his link to infowars triggered a 30-day suspension. Then the suspension was quickly reversed. Why? Presumably, whoever pulled the plug on Straka was overruled. But we don't know who issued the ban, or who lifted it, or why. Facebook apparently hasn't said anything publicly.

Lessons? First, now that being censored on social media is a surefire way to win conservative clicks, it's fair to assume that claims of censorship will proliferate, and not all of them will be true. Second, that doesn't mean they're all false, either. When it comes to the right, Silicon Valley almost certainly suffers from what the Valley used to call "epistemic closure" before the Valley embraced it. In that climate, "Sorry, mistake" isn't likely to mollify anyone.

So the right has good reason for its suspicion, and no way to get good evidence that might rebut it. To see if Alex Jones had indeed been turned into Voldemort, I had to put my Facebook account -- and a bit of my reputation -- at risk. And even then, the fact that my account stayed up might simply show that the censors saw it as a trap that they were smart enough to avoid.

Bottom line: conservative concern about platform bias will continue to grow, and only radical transparency about platform standards and due process is likely to address that concern.

Sep 10, 2018

We are fully back from our August hiatus, and leading off a series of great interviews, I talk with Bruce Schneier about his new book, Click Here to Kill Everybody: Security and Survival in a Hyper-Connected World. Bruce is an internationally renowned technologist, privacy and security commentator, and someone whom I respect a lot more than I agree with. But his latest book opens new common ground between us, as we both foresee a darker future for a world that is digitally connecting things that can kill people -- without figuring out a way to secure them. Breaking with Silicon Valley consensus, we see security regulation in the Valley’s future, despite all the well-known downsides that regulation will bring. We also find plenty of room for disagreement on topics like encryption policy and attribution.

In the News Roundup, I ask Jamil Jaffer, Nate Jones, and David Kris for the stories that people who took August off should go back and read. Jamil nominates the fascinating-as-a-slow-motion-car-wreck story of Maersk’s losing battle with NotPetya. We speculate on whether the Russians caused $10 billion in worldwide damage by mistake or on purpose, and whether anyone other than a US government lawyer would call that indiscriminate attack a war crime.

David nominates the 179-page complaint against a North Korean hacker behind most of that country’s famous hacks. And, as a palate cleanser, the remarkable, score-settling, where-are-they-now story of the companies that challenged the FBI’s attribution of the Sony hack to North Korea.

Finally, I suggest spending some time with what might be called DCLeaks for good guys: Intrusion Truth, a website devoted to outing personal details about the government hackers who have been attacking Western companies. It (and Crowdstrike) provides an old-fashioned pantsing of China’s Ministry of State Security (MSS) – the sort of embarrassing doxing that allowed the MSS to take over much of China’s cyberespionage portfolio from the hapless People’s Liberation Army after it was outed several years ago.

In other news, a Five Country Ministerial (homeland security and immigration ministers from the US, UK, Australia, Canada, and New Zealand) issued a statement on encryption that seemed to threaten action, saying that if tech companies don’t address the ministers’ concerns, “we may pursue technological, enforcement, legislative or other measures to achieve lawful access solutions.” While this group isn’t really the “Five Eyes” of SIGINT fame, that’s not very comforting for Big Tech, since the statement suggests a wider coalition and another step forward in the effort to bring Big Tech to heel on the issue.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Sep 07, 2018

Allowing me to extend my August hiatus by a week, Alan Cohn hosts the 229th episode of The Cyberlaw Podcast. He takes a deep dive into all things blockchain and cryptocurrency discussing recent regulatory developments and best practices for users of exchanges.

The episode begins by looking at the landmark decision coming out of the New York Eastern District Court in favor of the Commodity Futures Trading Commission (CFTC). Charles Mills provides an overview of the recent New York federal court decision and CFTC victory against Cabbage Tech, Corp. d/b/a Coin Drop Markets and Patrick K. McDonnell of Staten Island, New York, ordering McDonnell to pay over $1.1 million in civil monetary penalties and restitution in connection with a lawsuit brought by the CFTC alleging fraud in connection with virtual currencies, including Bitcoin and Litecoin. In addition, Charles presents a more general overview of CFTC regulations.

Claire Blakey presents a timeline of the US Securities and Exchange Commission’s (SEC) recent actions regarding ETFs. On August 23, 2018, SEC announced that it would reconsider a decision to reject nine Bitcoin-based exchange traded funds. Earlier this month, SEC staff delayed a decision on the SolidX proposal, stating it needs more time to consider the proposal – the deadline for this decision is September 30, 2018. Claire also discusses CBOE’s filing with SEC for a bitcoin ETF.

Evan Abrams highlights the four takeaways from the Department of Treasury’s Financial Enforcement Network (FinCEN) director’s speech on cryptocurrency. On August 9, 2018, FinCEN Director Kenneth Blanco delivered a speech on the agency’s approach to cryptocurrency where he made a few unexpected remarks. Evan states that this speech offered helpful clarifications and insights, but also left a number of important questions unanswered. In addition, Evan discusses the Office of the Comptroller of the Currency’s proposed charter for online lenders and other FinTech companies in the coming months.

Finally, Maury Shenk covers the recent reports about the EU finance ministers’ plan to discuss the possibility of cryptocurrency regulation at a meeting in early September. As part of a leaked confidential note, it is expected that EU ministers will discuss anti-money laundering issues amongst other things. Alan and Maury note that while the EU takes a heavier regulatory approach than the US in this area, the process is slow moving but steadily developing. In addition, Maury discusses the European Blockchain Partnership, describing it as an integrated effort for a great blockchain future.

For the interview, the Steptoe team was joined by Sarah Compani, Legal Counsel at Bitfinex. Bitfinex is a full-featured spot trading platform for major digital assets and cryptocurrencies, including Bitcoin, Ethereum, and many more. Bitfinex offers leveraged margin trading through a peer-to-peer funding market, allowing users to securely trade with up to 3.3-times leverage. Sarah took us through the best security practices for users of exchanges, particularly focusing on security settings that users can customize, such as Google Authenticator 2FA, Universal 2nd Factor (U2F), and IP address whitelisting. Sarah provides listeners with three takeaways as she responds to Alan’s questions regarding the future of exchanges, the Bitfinex platform, and potential challenges going forward.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Aug 22, 2018

We need better, more aggressive options to deter cyberattacks, since the ones we've come up with so far are clearly not deterring our adversaries. I would like to inspire more ambition, aggressiveness, and creativity in the American response. As the first stage in that effort, here's an op-ed I published today in the Washington Post:

The United States may have pioneered the idea of fighting wars in cyberspace, but it’s our adversaries who are using cyberattacks most effectively. To deter them, the country needs creative new ways to punish nations if they launch the devastating attacks that are within their grasp.

The need for options to strike back at cyber-aggressors is obvious — and urgent. Despite the sanctions and indictments provoked by Russia’s attack on the 2016 U.S. presidential election, Russian President Vladimir Putin is doubling down on cyber-intrusions. In recent months, Microsoft reported that Russia was trying to infiltrate the computer networks of multiple congressional campaigns.

Worse, the Department of Homeland Security says Russia is making a major push to infiltrate U.S. power-plant control rooms.

The only debate is over Putin’s intent: Is he planning to shut off power in the United States, as he is accused of doing in Ukraine in December 2016, or does he simply want to show that he can do so whenever he wants?

Other adversaries are also delighting in cyberweapons’ leveling effect. U.S. intelligence agencies believe that China is cheating on its Obama-era pledge not to engage in commercial cyberespionage. North Korea has dramatically improved its capabilities, moving its best hackers to China and other countries where Internet service is better, and using them to steal from banks, as well as to threaten the United States. And Iran, which wielded its willingness to attack U.S. corporations, banks and even dams as leverage in nuclear arms talks, remains one of the most active of all the nation-state hackers followed by the cybersecurity firm FireEye. No wonder Director of National Intelligence Daniel Coats recently said of these cyberthreats: “The warning lights are blinking red again.”

U.S. officials have often said the United States has unrivaled offensive cybercapabilities. Why hasn’t that deterred anyone? It’s simple. The United States is so reliant on computer networks that we’re afraid to launch a tit-for-tat exchange in cyberspace. It was true during the Obama administration and remains true today. As Army Lt. Gen. Paul Nakasone said during his confirmation hearing in March to be the nation’s top cyberwarrior, our adversaries “don’t fear us.”

Instead, they’re gradually upping the ante, looking to impose as much pain as possible without triggering serious consequences. The longer we go without an effective response, the more pain we’ll suffer. And if we wait until enemy hackers manage to kill lots of Americans, as they could, we risk a U.S. response so sudden and harsh that it sparks a war.

The country has tried “naming and shaming” attackers by indicting government-sponsored hackers from China, Iran and Russia. That’s fine, but the United States is unlikely ever to arrest those hackers, and, over time, attribution without retribution just advertises weakness. Sanctions have more bite and should still be employed, but their impact is delayed, hard to target and clearly insufficient. These inadequate options are about all the interagency process has coughed up.

We need to get tougher and more inventive. In the hope of inspiring others’ imagination, I offer a few options that belong in the U.S. tool kit:

●The next time North Korea uses its cadre of expatriate hackers in Kenya, Mozambique and other countries to attack the United States, we should demand that the host government expel the hackers. If officials don’t comply, U.S. Special Operations forces have plenty of experience taking action in countries that are unable or unwilling to stop terrorists operating from their soil; they could be sent in to seize the buildings, probably hotels, being used by the cyberattacks and take the hackers into custody.

● Russia has allegedly loaded U.S. electrical control systems with tools that could shut down the grid. Putin’s threat is clear, but two can play that game. It’s possible to build electromagnetic pulse weapons the size of a large copy machine that can fry electronics for a few miles around. Why not install several such weapons in high-rise office spaces around Moscow, including a few places where they’ll be found? Like with Putin’s implants in our grid, he’ll never be sure he has found them all, and there’s no need to use them — unless Putin uses his.

● Iran has shown a willingness to use malware that leaves victim networks irretrievably damaged. If Iran did that to U.S. systems, Iran’s remarkably vulnerable offshore oil platforms would be good targets for payback, from simple interruption of gas flows to complete destruction of as many platforms as are necessary to end or deter an attack.

These options may seem extreme; they were once unthinkable. But, frankly, so was Russia’s playing a major role in a U.S. presidential campaign. If we don’t want to suffer more extreme injuries at the hands of our adversaries, we need a few unthinkable responses of our own.

Jul 30, 2018

Our guest for the Cyberlaw podcast interview is Noah Phillips, recently appointed FTC Commissioner and former colleague of Stewart Baker at Steptoe. Noah fields questions about the European Union, privacy, and LabMD, about whether Silicon Valley suppression of conservative speech should be a competition law issue, about how foreign governments’ abuse of merger approvals can be disciplined, and much more.

The imminent adoption of the must-pass National Defense Authorization Act yields a deep dive on the bill. Most important for business lawyers, the bill will include a transformative rewrite of CFIUS’s investment-review procedures and policies.

Gus Hurwitz lays out many of the cyber issues addressed by the NDAA, while Dr. Megan Reiss explains the act’s creation of a “Solarium” commission designed to force serious strategic thinking about cybersecurity and cyberweapons. I offer my contribution to that debate – an effort to think the unthinkable and come up with tougher options for responding to serious cyberattacks. Since we’re trying to think the unthinkable, I argue, we’re really rooting for the itheberg, so I’ve dubbed it the Itheberg Project. I do, however, make an unusual double-barreled offer to those who might want to participate in the Itheberg Project.

All that pales next to a surprisingly lively discussion of circuits splitting over insurance coverage of cyber-related fraud losses. Gus and Matthew Heiman predict that the Supreme Court (or an insurance contract rewrite) will be necessary to resolve the issue – and both of them think the issue is well worth the Court’s time. No one tell Judge Kavanaugh or he may just decide to stay on the DC Circuit!

In a “lightning” round that the FTC may soon investigate for deceptive labeling:

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Jul 23, 2018

In this episode, Bobby Chesney charts the emergence of undetectably forged videos. They’re not here yet, but before we’re ready the internet will be awash with fake revenge porn, fake human rights atrocities, and fake political scandals. My talk with Bobby revolves around a recent paper by him and Danielle Citron. I confess to having seriously considered federal support for a fake video involving Osama bin Laden and kumquats (not what

Patt Cannaday and Stewart Baker

you’re thinking, though that would have been good too). Bobby and I discuss the ways in which the body politic – and particular political bodies – might protect themselves. This leads Bobby to propose a Cyberlaw Podcast mug prize for listeners who suggest what – and where – I should get inked as my last line of defense. He’s on. Send your suggestions to cyberlawpodcast@steptoe.com.

In the news, Maury Shenk and I puzzle over the EU’s questionable competition ruling (and $5 bn fine) for Google’s alleged abuse of a dominant position in mobile operating systems. Once again I find myself agreeing more with Donald Trump than his critics.

Patt Cannaday, a Steptoe summer associate, finds what’s new in the Justice Department’s Cyber Digital Task Force report: principally a set of rules to make sure that outing foreign governments interfering in our elections doesn’t become Justice Department interference in our elections. We both think Justice plans to give social media platforms privileged access to data about foreign governments’ tactics and plans. I propose that any such access be conditioned on the platforms pledging not to use the information to squelch speech that they just don’t like.

Congress is negotiating with the administration on penalties for ZTE. Nick thinks the result has been confusion between the export control penalties, which can be compromised, and supply chain restrictions, which shouldn’t be.

All the states have now asked for federal aid to defend their electoral systems from hackers. I argue that it’s now on them to prepare for attacks, including efforts to disrupt rather than throw this fall’s election.

All those podcasts with Steve Vladeck have left Bobby more comfortable blocking left hooks, but he and I still manage to engage profitably on the Carter Page FISA application document dump. We cover its implications for Devin Nunes’s early memo. We question the durability of the application’s reliance on early press stories claiming that Trump forces tilted the GOP platform against Ukraine. And I suggest that higher officials in Justice and the intelligence community should have demanded more overt vetting (and disclosure) of any partisanship tainting the evidence. It’s a blind spot they wouldn’t have had, I argue, if the FBI wanted to wiretap Carter Page while he infiltrated the ACLU.

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Jul 17, 2018

In Episode 226 of The Cyberlaw Podcast, I'm deep in the Cologado wilderness, and the News Roundup team (Brian Egan with Matthew Heiman, Jim Lewis, and Dr. Megan Reiss) muddles through without him.

Matthew and Jim discuss Friday’s indictment of 12 Russian GRU personnel by the Department of Justice and Special Counsel Mueller. Matthew explains that, while we shouldn’t expect extradition proceedings to take place any time soon (or ever), DOJ has a theory for pursuing these types of indictments in selected cases. I weigh in by Twitter, bemoaning somewhat surprisingly (given the source) that the indictments reflect a poor interagency coordination process and a lack of appreciation for diplomacy. From Jim’s perspective, these indictments are about as good as diplomacy is going to get on this issue…

Matthew walks through the continued bipartisan work in the Senate on the Secure Elections Act, which would facilitate information sharing amongst the states on election threats and take other steps in an attempt to improve election cybersecurity. Matthew explains that federalism may well end up limiting what can be done (or what Congress will agree to do) on this issue.

Megan weighs in on Commerce’s announcement on Friday that it lifted the Denial Order against ZTE after ZTE paid an additional $1.4 billion in penalties and took other steps pursuant to the new settlement agreement reached in June. Megan forecasts continued pressure on ZTE from Capitol Hill, even if the additional penalties against ZTE are generally seen as significant. Jim thinks that the US government’s approach to ZTE is shortsighted and may end up harming national security interests down the road.

And finally, Jim weighs in on a workmanlike GAO report on the Committee on Foreign Investment in the United States, the Department of Defense, and national security concerns – which concludes, among other things, that (1) technology transfers should be an area of concern for the US government and (2) the US government is poorly situated to identify the areas of technology transfer that should be of concern. Over to you, Congress!

I prerecorded the interview of Woody Hartzog, author of Privacy’s Blueprint: The Battle to Control the Design of New Technologies, and a professor of law and computer science at Northeastern. Woody’s thesis is that traditional privacy law has focused unduly on notice and consent, yielding unreadable privacy notices and consents that mean nothing but have great legal impact. Instead, he suggests a focus on how platforms design their user interfaces, borrowing from consumer protection and products liability law. My skeptical of the open-ended nature of the obligations Woody would like Silicon Valley to undertake, but they both at least agree that designers and government are surprisingly well-matched bedfellows.

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

In the news, David Kris reports that ZTE has gotten a limited life-support order from the Commerce Department. Meanwhile, Nate Jones tells us that China Mobile’s application to provide telecom service to Americans is also likely to bite the dust – after nearly seven years of dithering. Taking advantage of my preview of stories on Facebook, Tony Rutkowski suggests we call this the revenge of the “neocoms.” So we do.

Remarkably, the European Parliament fails to live down to my expectations, showing second thoughts about self-destructive copyright maximalism. Nick Weaver thinks this outbreak of common sense may only be temporary.

Paul Rosenzweig confesses to unaccustomed envy of EU security hardheadedness. Turns out that Europe has been rifling through immigrants’ digital data in a fashion the Trump Administration probably wouldn’t dare to try. More predictably, the Israelis are digging deep into social media to combat the stabbing attacks that afflicted the country until recently.

The DNC is trying to improve security, and it has trained 80% of its staff not to click on bad links. But as Nick Weaver and Paul Rosenzweig point out, that’s not good enough – even though there are few institutions that can get much above the DNC’s 80%. The answer? Nick says it’s two-factor authentication. We join forces to nudge Firefox toward offering the same level of support for 2FA as Google Chrome.

The feds are getting wise to the Dark Web, Nick tells us. They’re focusing on compromising the money launderers – and then their customers. This looks like a strategy that could work for the long haul.

We’re going to keep tweeting and posting some of the week’s stories that look like candidates for the News Roundup. Please reply to or retweet those you think we should cover. Relevant feeds: @stewartbaker on Twitter, Stewart Baker on LinkedIn, and stewart.a.baker on Facebook.

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Jul 02, 2018

In this episode I interview Duncan Hollis, another Steptoe alumnus patrolling the intersection of international law and cybersecurity. With Matt Waxman, Duncan has written an essay on why the US should make the Proliferation Security Initiative (PSI) a model for international rulemaking for cybersecurity. Since “coalition of the willing” was already taken, we settle on “potluck cyber policy” as shorthand for the proposal. To no one’s surprise, Duncan and I disagree about the value of international law in the field, but we agree on the value of informal, agile, and “potluck” actions on the world stage -- pretty much what PSI represents. In further support, I offer Baker’s Law of International Institutions: “The secretariat is the natural enemy of the United States.”

In closing, Duncan briefly mentions his work with Microsoft on international rulemaking, leading me to throw down on “Brad Smith’s godforsaken proposal.” Brad, if you are willing to come on the podcast to defend that proposal, I’ve promised Duncan a highly coveted Cyberlaw Podcast mug.

In the news, California has a new privacy law, as Steptoe summer associate Laura Hillsman explains, though what it will look like when it finally takes effect in 2020 remains to be seen.

Chris Conte reports that the SEC has charged a second Equifax manager with insider trading. I ask whether he shouldn’t also have been charged with lousy site design.

The White House draws a line in the sand over ZTE in a letter to the Hill – but Maury and I suspect the real message is in the lack of a veto threat. Maury thinks President Trump’s “go big, then go deal” negotiating strategy is also at work in his decision only to beat up Chinese investments once rather than twice over trade tensions.

NSA’s metadata program was restructured to rely on telecom companies rather than NSA’s own programmers. Congressional ideologues' insistence on leaving the metadata with the companies rather than in NSA’s computers predictably produced a private-sector meltdown. Which they’ll probably blame on NSA. Jamil Jaffer and I discuss.

What do you know? Reality does win in the end, and Reality Winner finally got the hint (as well as a pretty good plea deal).

Nextgov reveals an unimpressive showing for the Cybersecurity Information Sharing Act’s (CISA) information-sharing provisions, at least as far as sharing with DHS goes. Jamil and I agree, though, that information sharing within the private sector may be a better measure of CISA’s value.

In other news, The Intercept continues to pioneer relevance-free journalism. And trust in social media is collapsing, especially among Republicans, who (remarkably) now think tech companies need more regulation.

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Jun 26, 2018

I interview David Sanger in this episode on his new book, The Perfect Weapon – War, Sabotage, and Fear in the Cyber Age. It is a true first draft of history, chronicling how the last five years transformed the cyberwar landscape as dozens of countries followed a path first broken by Stuxnet -- and then, to our horror, branched out to new and highly successful ways of waging cyberwar. Mostly against us. David depicts an Obama administration paralyzed by the Rule of Lawyers and a fear that our opponents would always have one more rung than we did on the escalation ladder. The Trump administration also takes its lumps, sometimes fairly and sometimes not.

At center stage in the book is Putin’s uniquely brazen and impactful use of information warfare, but the North Koreans and the Chinese also play major roles. It is as close to frontline war reporting as cyber journalism is likely to get.

Cyberlaw news this week is dominated by a couple of Supreme Court decisions: In Carpenter the Court held 5-4 that warrants are required to collect a week of location data from cell phone companies. Michael Vatis lays out the ruling, and I complain that the Court has kicked off a generation of litigation over issues this decision opens up but fails to address. Tune in as Michael invokes James Madison and I counter with Ben Franklin. Who knew that the founding fathers had so much to say about the third-party doctrine?

Stewart Baker with David Sanger

Speaking of Court decisions that write checks for others to redeem, the 5-4 Wayfair decision is equally insouciant about triggering a generation of litigation about when internet companies must collect sales tax. After 50 years of waiting for Congress to decide a question that is clearly better resolved by legislation than judicial rule, the Court gave up and struck down the holding that a physical presence was required before sales tax had to be collected. Pat Derdenger explains just how much litigation he’ll be involved in. To his plea that Congress step in, I repeat a line I first used 25 years ago: Why should a Republican Congress enable the collection of taxes it can’t spend?

Matthew and Jim also agree that Chinese hackers are getting stealthier – probably in part because they’re chiseling around the edges of their agreement not to steal commercial secrets from US firms. We also ask whether the Chinese have begun releasing data from their OPM hack to criminal actors. David Sanger thinks not.

America's lack of a coherent cyberwar strategy is becoming apparent not just to adversaries but also to Congress, which is in the process of mandating a new commission on cyberwar strategy. Whether calling it Project Solarium, a hallowed name in defense thinking, will make the commission more successful remains to be seen.

In payback news, I am pleased to report that there’s more libel litigation in store for the Southern Poverty Law Center, which specializes in feeding Silicon Valley’s worst prejudices about conservatives.

The Administration is struggling to come up with privacy principles that can compete with GDPR. Matthew and I predict that it won’t succeed.

One last note: David Sanger is on a book tour– if you’re in the Washington DC area, he will be hosting a talk and book signing at Politics & Prose on Thursday, June 28, at 7pm.

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Jun 18, 2018

Our interview is with Megan Stifel, whose paper for Public Knowledge offers a new way of thinking about cybersecurity measures, drawing by analogy on the relative success of sustainability initiatives in spurring environmental consciousness. She holds up pretty well under my skeptical questioning.

In this week’s news, Congress and the Executive branch continue to fight over the bleeding body of ZTE, which has already lost nearly 40% of its market value. The Commerce Department has extracted a demanding compliance and penalty package from the Chinese telecom equipment manufacturer. The Senate, meanwhile, has amended the NDAA to overturn the package and re-impose what amounts to a death penalty (see section 1727). Brian Egan and I dig into the Senate’s language and conclude that it may do a lot less than the Senators think it does, and that may be the best news ZTE is going to get from Washington this year.

Judge Leon has approved the AT&T-Time Warner merger. Gus Hurwitz puts the ruling in context. His lesson: next time, the Justice Department needs better evidence.

Brian gives us an update on what’s not in the CFIUS reform bill now that the CFIUS reform bill is in the NDAA and on its way to adoption. I suggest that the bill is a symptom of a new Cool War, and the beginning of a long, slow process of breaking the commercial world back into competing blocs. Complete with mirror-imaging, as both China and DOD start publishing lists of the technologies they expect to use in the burgeoning competition.

Kaspersky is getting a lesson in Cool War bloc dynamics, as the EU Parliament trashes the company as a malicious actor and the company acts out, terminating its cybersecurity arrangements with EU institutions.

Megan Stifel and I explore what it means that Chinese hackers are apparently back to their old tricks – stealing competitive secrets for commercial advantage.

Given a choice between EFF and the EU, I come down on the EFF’s side, at least when the EU is snuggling up to Big Copyright and forcing Internet companies to automatically scan customer uploads for copyright violations. This is bad news for users, of course, since the tools are never perfect, and the incentives will be to err on the side of preventing speech. But, really, EU, if you were wondering why you’ll never have a vibrant tech startup scene, it’s time to look in the mirror. This measure may sound as though it will be tough on YouTube, but it will be fatal to its smaller competitors.

But surely, you say, the owners of intellectual property will be constrained by the need to keep their consumers happy. Yeah, right. If you believe that, you might want to take a closer look at the astonishing surveillance system that IP owners have dreamed up in Spain. At least nothing so intrusive could be done in Europe, where GDPR has created a privacy utopia …

More Cool War casualties: US sanctions on Russia have hit a couple of companies that Silicon Valley thought of as friends and neighbors. This dividing-into-blocs business has some surprising costs. Brian, of course, wants to know how to square these sanctions with the president’s view of Russia. I supply the answer (two, actually), but you’ll have to listen to find out what they are.

Gus Hurwitz plugs his new privacy paper, which pantses privacy campaigners for hypocrisy.

Gus also comments on Apple’s new USB restricted mode, which law enforcement support contractors say they’ve already defeated.

In the good news of the week, the Southern Poverty Law Center gets a comeuppance in the form of an unconditional apology and $3.4m libel settlement for including Maajid Nawaz in its nasty and irresponsible 2016 “Field Guide to Anti-Muslim Extremists.” If you’re keeping score at home, that’s $3.37 million down, $429 million to go before SPLC’s grotesquely swollen endowment is used up.

Speaking of comeuppances, I get mine for correcting Jennifer Quinn-Barabanov’s pronunciation of cy près as “sigh pray.” I’m a “see pray” guy. Alert listener Tim White decided to call up Brian Garner of Garner’s Dictionary of Modern Legal Usage for a ruling. In a moment straight out of a Woody Allen film, Garner responds through an editor that “Professor Garner is editing the entries in Black’s and Garner’s Dictionary of Legal Usage to reflect that /sigh/ is the traditional anglicized pronunciation and that /see/ is a repatriated French pronunciation. So both pronunciations will be listed, but /sigh/ will be listed first as the preferred one.” Short version: I’m condemned as an egregious grammar snob who doesn’t know a repatriated French pronunciation when he sees one. I think I owe Jennifer Quinn-Barabanov an apology – and $3.37.

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Jun 11, 2018

The 11th Circuit’s LabMD decision is a dish served cold for Michael Daugherty, the CEO of the defunct company. The decision overturns decades of FTC jurisdiction, acquired over the years by a kind of bureaucratic adverse possession. Thanks to the LabMD opinion, practically all the FTC’s privacy and security consent decrees are at risk of being at least partly unenforceable — and if the dictum holds, the FTC may have to show that everything it views as an “unfair” lack of security is actually a negligent security practice.

Commerce says it has a deal with ZTE. Nate Jones wonders whether the bipartisan opposition to the deal from Congress is too late.

David Kris introduces a remarkable week for Justice Department responses to leaks of classified information. A long-time security director at the Senate Intelligence Committee succumbs first to the wiles of an aspiring reporter, and then to the temptation to lie about the romance to the FBI. James Wolfe will pay a heavy price for his leaks of classified information — without ever being tried for leaking classified information.

I can’t help asking how the FBI gathered as much information as they did from supposedly secure services like Signal and WhatsApp. Nick Weaver and David point to metadata as the fatal flaw in Wolfe’s security — and to cloud backup as the fatal flaw in Manafort’s (along with the problem that any secret shared with another is a hostage to that party’s inclinations).

The Chinese are having a hell of a run at US secrets, David also reports, as evidenced by an espionage arrest, another espionage conviction, and a major story about a Chinese hack to harvest Pentagon technology. The Chinese recruitment of Hansen, who faced money trouble, maybe the first fruits harvested by the Chinese from their trove of OPM files listing all the weaknesses of US clearance holders.

DHS (and DOJ) want new authority to regulate drones. Nick is enthusiastic and offers some exciting and chilling video to support his view that drones will soon pose a wide variety of threats.

Nate reports on the Democrats’ effort to get a threat assessment of President Trump’s phone use.

Speaking of things we really need to worry about more, Nick tells us the Russian’s VPNFilter is worse than we thought, and we already thought it was bad. It’s time to take the security of your home router very seriously.

I close with a quick rant, calling out Twitter, Facebook, Google, and Amazon for all accepting advice on who is a “hate” group from the irresponsible and irredeemably biased Southern Poverty Law Center. Really, guys, if you want half the country to hate Silicon Valley, this is exactly what you should be doing.

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!